IS MARITAL RAPE CRIME IN INDIA?/ CRIME AGAINST WOMEN

 

The question or argument today in society is what marital rape is and whether it should be criminalized. To understand it, you have to separate marital rape into two words. Marriage and rape. Marriage means relating to marriage or the relationship between husband and wife. Rape means that a man or a woman is forced to have sex.

FIRST TO KNOW IS MARRIAGE A CONTRACT OR AN AGREEMENT

People in India follow culture rather than contract. A marriage agreement is not valid in India under the Hindu Marriage Act 1955 and it is specifically governed by the Indian Contract Act 1872. Marriage is considered a contract between husband and wife under Islamic and Christian law.

RAPE क्या है?

Rape is an illegal sexual activity, usually sexual intercourse, against the will of the victim by force or threat of force, or with a person who cannot legally give consent due to the status of a minor, mental illness, mental retardation, or drunkenness.

It is the 4th most common crime in India. Rape is defined under Section 375 of the Indian penal code,1860 also known as IPC. 

PUNISHMENT OF RAPE IN INDIA

Rape is defined in section 375 of the Indian Penal Code as-

A man is said to commit rape if he:-

(a) Penetrates his penis, to an extent, into the vagina, mouth, urethra, or anus of a woman or makes her do so with him or any other person; or
(b) Inserts to any extent, any object or part of the body, not being the penis, into the vagina, the urethra, or anus of a woman or makes her do so with him or any other person, or
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of the body of such woman or makes her do so with him or any other person; or
(d) Applies his mouth to the vagina, anus, or urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-

Firstly- Against her will
Secondly- Without her consent,
Thirdly- With her consent, when her consent has been obtained by putting her on any person in whom she is interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under eighteen years of age.
Seventhly- When she is unable to communicate consent.

Punishment for rape is given in section 376 of the Indian Penal Code. Except in cases, provided in subsection 2 of the same section, punishment will be rigorous imprisonment which is not less than 7 years, which may extend to life imprisonment and a fine.

Punishment for Rape across the Globe:

1. Egypt- The rapist is hanged to death.
2. Israel- Here, a Rape convict gets 4 years minimum and 16 years maximum imprisonment.
3. United Arab Emirates- Here also punishment for Rape is Death.
4. China- In China, Rape is considered as a brutal crime, and Death Penalty is awarded to rapists.
5. Afghanistan- The rapist is hanged to Death or shot dead by a bullet in the head. The punishment is given within 4 days of the crime.
6. France- A rapist is given 10 years of imprisonment, but if the victim dies, punishment is increased to 30 years.
7. USA- Here, the maximum punishment granted is 30 years in jail.
8. Greece- Rapist is punished with incarceration.
9. Iran- Death Penalty is granted to rapists.
10. North Korea- The offender is either shot in his head or vital organs by a firing squad.

WHAT IS MARITAL RAPE?

Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.

INDIAN LAWS ON MARITAL RAPE

Today worldwide, India stands one amongst the 36 countries that haven’t criminalized marital rape. Those countries that have not yet criminalized marital rape are mostly developing nations/countries. 

• CASE: In Nimishbhai Bhartibhai Desai vs State of Gujarat 2018, the question was raised whether a husband who is forcing her wife to indulge in oral sex would amount to rape or not and should be punished under Section 376 of IPC? 

The court took this matter and said that our country hasn’t made marital rape a criminal offense till now. Because of the fear amongst politicians that it will destabilize the institution of marriage and also women can use this to act against their husbands and make false charges against them. Marital rape can’t be unseen by law as it is equal to rape committed by a husband upon his wife so if any husband assaults his wife he would be punished under IPC for the offense of assault but if the same husband forces his wife to indulge in sexual intercourse he would be liable for the offense of assault only under valid marriage and not for rape.

ARGUMENTS IN FAVOUR OF CRIMINALIZING MARITAL RAPE 

EXCEPTION 2 : VIOLATES Article 14

EXCEPTION 2 Criminalizes marital rape with women under 15 years only.

(Independent Through case raised the age from 15 to 18 years)

Section 498a does not specifically criminalize marital rape.

Exception 2 Violates a women's right to autonomy under article 21.

ARGUMENTS AGAINST CRIMINALIZING MARITAL RAPE

Implied consent of married women to indulge in sexual intercourse.

Already an offense under Section 498a IPC and Domestic violence Act.

Defeats the purpose of Section 375 IPC. (Exception 2)

Increase in cases of harassment against men

AMENDMENTS IN RAPE LAW

👉 1983

👉 2002

👉 2013

👉 2018

CRIMINAL LAW AMENDMENT ACT 2013

In 2013 Amendment Act expanded the definition of rape to include oral sex.

Added insertion of an object or any other body part into a women's vagina etc will amount to rape.

CRIMINAL LAW AMENDMENT ACT 2018

The minimum punishment for rape of women from 7 years to 10 years.

Rape and gang rape of girls below the age of 12 years carries minimum imprisonment of 20 years. (Extendable to life imprisonment or death)

 IMPORTANT  CASES RELATED TO MARITAL RAPE 

           SAKSHI V/S. UNION OF INDIA

                              (2004)

In this case, once an NGO said if a husband physically harassed her wife so it is a punishable offense.

So why sexual intercourse without the consent of the wife is not considered to be a punishable offense?

In this case, the supreme court upheld the existing definition under section 375. And said no alteration to be done in section 375.

     INDEPENDENT THOUGHT V. UNION OF INDIA & ANOTHER

                                               (2017)

In this case, an NGO filed a petition challenging section 375 (Exception2)

This supreme court said if any husband do sex with his wife who is in under 15-18 so it will be considered rape.

But it did not consider married women victimized by marital rape.

     NIMESHBHAI BHARATBHAI DESAI V. STATE OF GUJRAT

                                          (2018)

In this case, Justice JB Pardiwala express their views

" A wife is not a chattel and a husband having sexual intercourse with his wife is not merely using property he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent"

TO KNOW ABOUT THE RAPE LAWS AND RIGHTS OF THE RAPE VICTIMS

 

https://amazinglawfacts.blogspot.com/2022/05/six-imporntant-basic-rights-of-rape.html